Justice, Justice Thou Shalt Pursue

A Life's Work Fighting for a More Perfect Union

Ruth Bader Ginsburg

• Publisher: University of California Press
• Year: 2021
• Print ISBN: 9780520381926
• eBook ISBN: 9780520381940
• Edition: 1
• Topic: Law
• Subtopic: Law Biographies
• Index: Law

Ruth Bader Ginsburg's last book is a curation of her own legacy, tracing the long history of her work for gender equality and a "more perfect Union."

In the fall of 2019, Justice Ruth Bader Ginsburg visited the University of California, Berkeley School of Law to deliver the first annual Herma Hill Kay Memorial Lecture in honor of her friend, the late Herma Hill Kay, with whom Ginsburg had coauthored the very first casebook on sex-based discrimination in 1974. Justice, Justice Thou ShaltPursue is the result of a period of collaboration between Ginsburg and Amanda L. Tyler, a Berkeley Law professor and former Ginsburg law clerk. During Justice Ginsburg's visit to Berkeley, she told her life story inconversation with Tyler. In this collection, the two bring together that conversation and other materials—many previously unpublished—that share details from Justice Ginsburg's family life and long career. These include notable briefs and oral arguments, some of Ginsburg's last speeches, and her favorite opinions that she wrote as a Supreme Court Justice (many in dissent), along with the statements that she read from the bench in those important cases. Each document was chosen by Ginsburg and Tyler to tell the story of the litigation strategy and optimistic vision that were at the heart of Ginsburg's unwavering commitment to the achievement of "a more perfect Union." In a decades-long career, Ruth Bader Ginsburg was an advocate and jurist for gender equality and for ensuring that the United States Constitution leaves no person behind. Her work transformed not just the American legal landscape, but American society more generally. Ginsburg labored tirelessly to promote a Constitution that is ever more inclusive and that allows every individual to achieve their full human potential. As revealed in these pages, in the area of gender rights, Ginsburg dismantled long-entrenched systems of discrimination based on outdated stereotypes by showing how such laws hold back both genders. And as also shown in the materials brought together here, Justice Ginsburg had a special ability to appreciate how the decisions of the high court impact the lived experiences of everyday Americans. The passing of Justice Ruth Bader Ginsburg in September 2020as this book was heading into production was met with a public outpouring of grief. With her death, the country lost a hero and national treasure whose incredible life and legacy made the United States a more just society and one in which "We the People, " for whom the Constitution is written, includes everyone.

RUTH BADER GINSBURG, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES

What follows are materials assembled from Justice Ginsburg’s confirmation proceedings and her service on the Supreme Court of the United States. This section begins with the testimony of Justice Ginsburg’s friend and longtime co-author, then-Berkeley Law Dean Herma Hill Kay, before the Senate Judiciary Committee during Justice Ginsburg’s 1993 confirmation proceedings. Kay chronicles Justice Ginsburg’s exceptional career as a scholar and advocate and testifies that “[i]n Ruth Bader Ginsburg, the President has offered the country a Justice worthy of the title.”

Next, Justice Ginsburg has chosen her four favorite opinions that she wrote during her time on the Supreme Court: her decision on behalf of the Court in United States v. Virginia, 518 U. S. 515, 550 (1996) (the Virginia Military Institute, or VMI case), and her dissents in Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007), Shelby County v. Holder, 570 U. S. 529 (2013), and Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014).

In the Herma Hill Kay Memorial Lecture conversation reproduced in the first section, Justice Ginsburg was reluctant to name a favorite opinion. “That’s a little like asking about my four grandchildren, two step-grandchildren, one great-grandchild, which one do I love the most?” All the same, she did reference and discuss her opinions in VMI and Ledbetter. She adds here two additional dissents drawn from her twenty-seven years of service on the Supreme Court. Also included are the statements Justice Ginsburg read from the bench when the Court announced the decisions in the four cases. It is rare for a dissenting justice to read a summary of their opinion from the bench, so Justice Ginsburg’s decision to do so in these cases is significant, revealing she believed her colleagues in the relevant majorities had not just erred, but, as she writes in her Shelby County dissent, “err[ed] egregiously.” Justice Ginsburg once said in an interview when asked about her dissents, “I will not live to see what becomes of them, but I remain hopeful.”

ON THE NOMINATION OF RUTH BADER GINSBURG, TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, ONE HUNDRED THIRD CONGRESS, FIRST SESSION (JULY 1993)

Prepared Statement of Herma Hill Kay

Senator Biden, Members of the Judiciary Committee, it gives me great pleasure to be here and participate in your deliberations as you prepare to recommend to the Senate the advice it should give President Clinton on his nomination of Judge Ruth Bader Ginsburg to the United States Supreme Court.

President Clinton’s choice of Judge Ginsburg is wise and inspired, sound and practical. In Judge Ginsburg, the President has found a constitutional scholar who knows from her own experience what it means to be excluded despite outstanding credentials solely because of sex. In the early 1970s, she brought that experience—and her flawless logic—to the bar of the United States Supreme Court, where she will soon take her seat. In case after case, she hammered home the point that for the law to assign pre-existing roles to women and men is limiting to both sexes and forbidden by the equal protection clause. It is a point that—at present, twenty years later—many regard as self-evident. But the High Court seemed unable to grasp that point before Ginsburg’s advocacy, instead taking as its starting position the belief that a legislative distinction drawn on the basis of sex was a rational classification that passed constitutional muster.

Ruth Bader Ginsburg’s strategy of written and oral advocacy to help the nine men then sitting on the Supreme Court understand the irrationality of sex-based distinctions was one of patient instruction. She chose cases in which the law’s unequal treatment of men and women was evident and the consequent need for a broader interpretation of the equal protection clause clearly established and readily accepted. The result is that her cases are now constitutional classics: Reed v. Reed, 1971: A mother can administer a deceased child’s estate as capably as a father. Frontiero v. Richardson, 1973: A servicewoman’s Air Force pay earns the same fringe benefits for her “dependent” spouse that a serviceman’s pay provides for his “dependent” spouse. Weinberger v. Wiesenfeld, 1975: A widowed father is entitled to the same insurance benefits available to a widowed mother to help him care for his infant son after his wife’s death. Califano v. Goldfarb, 1977: A deceased wife’s earned income provides the same survivor’s benefits to her widowed husband that a deceased husband’s widow would receive.

These are some of the legal propositions that Judge Ginsburg established as an advocate, and she used them to help the Court forge a new understanding of the equal protection of the laws. It was Ruth Bader Ginsburg’s voice, raised in oral argument before the United States Supreme Court, that opened new opportunities for the women of this country. She was in the forefront of the creation of legal precedents that advocates who followed her have used, time and time again, to build a strong edifice against discrimination that now protects many groups. She left her enduring mark on the Constitution even before taking her place on the Supreme Court.

I speak today not only as an academic observer of Judge Ginsburg’s work, but also as her co-author and friend. I have had the privilege of working with her on our casebook on Sex-Based Discrimination, published in 1974. She and I are both among the first twenty full-time women law professors in the country. We continue to serve together on the Council of the American Law Institute. From those vantage-points, I can say that hers is a courageous intellect, and that she is as steadfast and loyal a colleague and friend as anyone could wish. Her standards are exacting: she produces the best and most precise work and she expects the same from others. As this confirmation process has shown the nation, she thinks deeply and chooses her words with care. But I can tell you that her compassion is as deep as her mind is brilliant. In Ruth Bader Ginsburg, the President has offered the country a Justice worthy of the title. I urge this Committee to recommend that the Senate give its enthusiastic consent to her appointment to the United States Supreme Court.

UNITED STATES V. VIRGINIA (1996)

In the decision that follows, United States v. Virginia, the Supreme Court confronted the argument that the admissions policy of the Virginia Military Institute (VMI) excluding female applicants violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Founded in 1839, VMI’s mission is to produce “citizen-soldiers” prepared for leadership in civilian life and in military service. When the United States government sued the Commonwealth of Virginia challenging the exclusionary admissions policy, the State proposed creating the Virginia Women’s Institute for Leadership, a parallel program for women chartered with the same mission to produce “citizen-soldiers.”

In her opinion on behalf of the Court, Justice Ginsburg writes that the case asks the Court to decide “whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” Holding the admissions policy to be constitutionally problematic, Justice Ginsburg invokes the standard announced by the Court in Mississippi University for Women v. Hogan, 458 U. S. 718 (1982), to conclude that Virginia had failed to demonstrate an “exceedingly persuasive justification” for its exclusionary policy. Her opinion likewise holds that Virginia’s proposed new institution for female cadets could not offer the same opportunities or benefits of VMI’s unique and storied program. Finally, Justice Ginsburg observes, “There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’ ”

Although he did not sign on to her opinion, Chief Justice William H. Rehnquist concurred in the judgment, agreeing with the Court’s holding. This left Justice Antonin Scalia as the lone dissenter. In Justice Scalia’s view, the Court had raised the level of scrutiny applied to gender classifications beyond what the Court’s earlier precedents supported. Further, he believed that VMI had demonstrated that its “all-male composition” was “essential to th[e] institution’s character.” Justice Ginsburg’s responses to the dissent may be found in her opinion for the Court.

The statement Justice Ginsburg read from the bench on the day the Court announced the VMI decision, along with her opinion for the Court, follow.

UNITED STATES V. VIRGINIA, NO. 94-1941

VIRGINIA V. UNITED STATES, NO. 94-2107

BENCH ANNOUNCEMENT

Supreme Court of the United States (June 26, 1996)

This case concerns an incomparable military college, the Virginia Military Institute (VMI), the sole single-sex school among Virginia’s public institutions of higher learning. Since its founding in 1839, VMI has produced civilian and military leaders for the Commonwealth and the Nation. The school’s unique program and unparalleled record as a leadership training ground has led some women to seek admission. The United States, on behalf of women capable of all the activities required of VMI cadets, instituted this lawsuit in 1990, maintaining that under the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution, Virginia may not reserve exclusively to men the educational opportunities that VMI, and no other Virginia school, affords.

The case has had a long history in court. In the first round, the District Court ruled against the United States, reasoning that the all-male VMI served the State’s policy of affording diverse educational programs. The Fourth Circuit vacated that judgment, concluding that a diversity policy serving to “favor one gender” did not constitute equal protection.

In the second round, the lower courts considered, and found satisfactory, the remedy Virginia proposed: a program for women, called the Virginia Women’s Institute for Leadership (VMIL) at a private women’s college, Mary Baldwin College. A VWIL degree, the Fourth Circuit said, would not carry the historical benefit and prestige of a VMI degree, and the two programs differed markedly in methodology—VMI’s is rigorously “adversative,” VWIL’s would be “cooperative.” But overall, the lower courts concluded, the schools were “sufficiently comparable” to meet the demand of equal protection.

We reverse that determination. Our reasoning centers on the essence of the complaint of the United States, and on facts that are undisputed: Some women, at least, can meet the physical standards VMI imposes on men, are capable of all the activities required of VMI cadets, prefer VMI’s methodology over VWIL’s, could be educated using VMI’s methodology, and would want to attend VMI if they had the chance.

With recruitment, the District ...

Table of contents

• Imprint
• Title
• Copyright
• Dedication
• Contents
• Preface: Amanda L. Tyler
• Acknowledgments
• Introduction: Amanda L. Tyler
• Herma Hill Kay Memorial Lecture
• Photo Section
• Ruth Bader Ginsburg the Advocate
• Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States
• Justice Ruth Bader Ginsburg: Recent Speeches
• Afterword: Amanda L. Tyler
• Timeline: The Life of Justice Ruth Bader Ginsburg